China, at its own pace, sails ASEAN toward a maritime dispute code

MANILA -- For 15 years, China has largely dictated the pace of its negotiations with the Association of Southeast Asian Nations on a code of conduct for the disputed South China Sea. With an agreement now reached, Beijing still has the upper hand on when it should move forward.

On Sunday, foreign ministers from the 10 ASEAN nations and China adopted a framework for the code, which spells out general principles but leaves the details up for later talks. Just as this was being hailed as a milestone for the two sides, which have struggled to reach a deal, Chinese Foreign Minister Wang Yi set new conditions before talks can proceed.

"When the situation in the South China Sea is generally stable, and if there is no major disruption from outside parties as the precondition, then we will consider during the November leaders' meeting -- we will jointly announce -- the official start of the COC [code of conduct] conversation," Wang told reporters after meeting with his ASEAN counterparts here.

Wang's stipulations continue to bring into question China's commitment to formulating a long-awaited effective code of conduct. ASEAN diplomats have previously accused China of stalling a process already embodied in the 2002 Declaration on the Conduct of Parties in the South China Sea.

Still, the adoption of the framework marks the start of what are expected to be thorny negotiations, including about whether the code should be legally binding. ASEAN wants a binding pact, but China prefers settling issues on the negotiating table, where it can wield its economic and political clout.

Negotiations on the code also come despite the fact that ASEAN remains divided on the South China Sea issue. After lobbying hard, Vietnam successfully managed to include in the ASEAN joint communique on Sunday a reference to the massive island reclamation projects China has undertaken in seven areas in the sea, parts of which are also claimed by ASEAN members Brunei, Malaysia, the Philippines and Vietnam.

But other ASEAN states such as Cambodia and the Philippines, China's longtime and new pals in the bloc, rejected Vietnam's bid to note in the communique ASEAN's desire for a legally binding code of conduct.

While it waged a lonely defiance of China, Vietnam found support from the foreign ministers of U.S., Japan and Australia, who attended the ASEAN Regional Forum here on Monday.

"The ministers further urged ASEAN member states and China to ensure that the code of conduct be finalized in a timely manner, and that it be legally binding, meaningful, effective, and consistent with international law," according to a joint statement by U.S. Secretary of State Rex Tillerson, Japanese Foreign Minister Taro Kono and Australian Foreign Minister Julie Bishop.

The three went further with a reassertion of freedom of navigation that could infuriate China. "The three countries will continue to fly, sail and operate wherever international law allows," they said.

On July 25, Wang urged ASEAN to reject "nonregional forces" that want to stir up trouble in the South China Sea. While he did not identify them, he appeared to refer to U.S. and Japan, which have carried out maritime patrols there.

While supporters of the ASEAN-China agreement regard it as a belated step forward, critics say it offers little fundamentally new from the nonbinding and ignored 2002 declaration. The latest framework has not been made public, but a leaked document says the code is "not an instrument to settle territorial disputes or maritime delimitation issues."

A code of conduct for disputants in the South China Sea is in the spirit of an ASEAN declaration in 1992, and was restated in the 2002 declaration. Both failed to prevent the parties involved from complicating the situation, such as by undertaking huge reclamation and construction projects.

If ASEAN doesn't fight for an effective and binding code, it could end up back at the same point it was decades ago.

ASEAN Secretary-General Le Luong Minh himself put it clearly during an interview with the Nikkei Asian Review in June: "For the COC to be capable of [not only] preventing but also managing incidents that took place in the past years since the inception of the DOC [2002 declaration] ... the COC must be a legally binding instrument."